Kerala

StateCommission

A/16/98

SECRETARY KSEB - Complainant(s)

Versus

DIRECTOR KARUNA NURSING SCHOOL - Opp.Party(s)

B SAKTHIDHARAN NAIR

30 May 2018

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO.98/16

 

JUDGMENT DATED:30.05.2018

 

PRESENT : 

HON’BLE JUSTICE SHRI. S.S. SATHEESACHANDRAN:     PRESIDENT

SHRI. T.S.P. MOOSATH                                            : JUDICIAL MEMBER

SHRI.RANJIT. R                                                                              : MEMBER

1. Secretary, KSEB,

Vydyuthi Bhavan,                                                 

Pattom, Thiruvananthapuram.-695 004.

                                                                                                : APPELLANTS

2. The Assistant Executive Engineer,

Electrical Section,

Nedumkandam P.O,

Idukki-685 553.

 

(By Adv: Sri. B.Sakthidharan Nair)

 

            Vs.

The Karuna Nursing School,

Nedumkandam, R/by

Fr. Philip Perunattu,                                                           : RESPONDENT

Director, Karuna Nursing School,

Nedumkandam, Idukki-685 553.

 

78503207062.  

 

JUSTICE SHRI.S.S. SATHEESACHANDRAN : PRESIDENT

2.      Opposite parties in CC.183/14 on the file of CDRF, Idukki has filed this appeal. The Forum below by order dated 30^th September 2015 passed in the complaint. 

3.      Ext.P5 bill issued by the opposite parties to the complainant with direction to issue a fresh bill as per tariff  LT VI A to it within 30 days.  Aggrieved by that Order, appellants have preferred this appeal.

4.      Appellants are a statutory board, Kerala State Electricity Board, and, one of its officers.  They were proceeded against on a complaint by Nursing School which is alleged to have been registered under the Charitable Societies Act and exempted from income tax, who were included in Ext.P5 bill issued over the consumption of electricity in the nursing school.  According to the complainant they applied for electricity connection for a hospital attached to the nursing school in 2002 and after due inspection connection was provided fixing the rate under LT-VI A tariff.  An APTS team attached to 2^nd opposite party inspected the premises on 5.5.2014 and, on the basis of such inspection Ext.P5 bill was issued fixing tariff under LT-VII A for an amount of Rs.1,95,729/-.  Questioning Ext.P5 bill and fixation of tariff bill thereunder, the complaint was filed contending that a nursing school, a charitable institution charges for electric consumption need only pay  tariff rate fixed under LT VI B.  The complaint was filed for quashing P5 bill and for compensation imputing deficiency of service.  Opposite parties filed version contending that tariff under VI A was originally fixed on an application by the Church, a worship place and charges on electricity consumed were realized accordingly.  Self-financing  educational institutions like the complainant till 1.12.2007 was under the category applicable for LT VI A and, thereafter, the Government changes the tariff rate for them as under LT-VII.  On the basis of inspection conducted by APTS complainant was issued an adjustment bill for the amount due on tariff change from LT VI A to LT VII with effect from 1.12.2007.  Ext.P5, bill was issued without imposing any penalty or interest and after deducting the amounts till then paid by the complainant.  Opposite parties further contended that the self-financing institutions like complainant are not eligible to subsidized tariff.  Dismissal of complaint, raising aforesaid contentions was applied for by the opposite parties.

5.      Evidence in the case consisted of the oral testimony of PW1 and Exts.P1 to P8 on the side of complainant, and DW1 and Exts.R1 and R3 for the opposite parties.  The Forum below appreciating the materials produced by both sides and placing reliance on P3 application for electric connection, P4 receipt for the fee collected and also P7 copy of the proceedings of income tax issued to the complainant arrived at the conclusion that complainant a charitable institution is liable to pay tariff only under LT VI A and not under LT VII as fixed and demanded under P5 bill.  In that view of the matter Ext.P5 bill was quashed with direction to the opposite parties to issue fresh bill as per tariff VI A within 30 days to the complainant.

6.      Notice was issued to the respondent but he remained absent.  We heard the learned counsel for the appellants.

7.      Learned counsel inviting our attention to a gazette notification dated 2007 November 27 of Government of Kerala urged that with effect from 1.12.2007 onwards tariff rate under LT VII is applicable to self-financing educational institutions like the complainant.  The above gazette notification has been produced with a petition to receive it as additional evidence in appeal.  So far as placing reliance on a gazette notification which is a public document, no separate petition for receiving it as additional evidence is called for.  All judicial/quasi judicial Fora are expected to take note of the notification, a public document, and consider its applicability to the facts of the case.  Notification produced by the appellants clearly demonstrate that the tariff rate applicable to a self-financing additional institution with effect from 1.12.2007 is LT VII.  So the only remaining question to be looked into in the case is whether any exemption is called for a charitable institution.  Even assuming that the nursing school was registered under the Travancore-Cochin Cultural, Literature and Science Societies Act, 1955, it does not postulate that the institution is operated for charity.  Operation of institution, its actual practice, has to be looked into to examine whether it is really a charitable organization.  Complainant is a nursing school and, admittedly, it is a self-financing institution.  There need not be any doubt that the complainant a self-financing institution is collecting fees from the students for operating that institution and not running it as a charitable organization.  Ext.P7 certificate issued by the income tax department to the complainant does not bear any significance in determining the question whether the institution is a charitable institution or not, which is made crystal clear even in that certificate, stating that it would have no bearing  on the question whether the complainant is a charitable organization.   Complainant has not produced any convincing material to show it is a charitable organization other than Ext.P7 which we have already found cannot be acted upon for that purpose.  We find that Ext.P1 relates to Idukki Society Bishop House and it does not relate to the complainant.  Even assuming that Society has some control over the complainant institution it does not follow that its operations are carried out for charitable purposes.  So in the light of the gazette notification referred to above fixation of the tariff rate under LT VII for the complainant and demand under P5 bill adjusting payments till then paid without imposing penalty or fine by the opposite parties was fully justified, O order of the lower Forum quashing Ext.P5 bill with direction to issue fresh bill is erroneous and liable to be setaside.  We do so.

Appeal is allowed reversing the order of the lower Forum.  CC.183/14 on the file CDRF, Idukki shall stand dismissed.  Sum deposited by the opposite party for entertaining the appeal shall be refunded on its application.  Parties are directed to suffer their costs.

 

JUSTICE S.S. SATHEESACHANDRAN :  PRESIDENT

 

T.S.P. MOOSATH  : JUDICIAL MEMBER

 

RANJIT. R : MEMBER

 

VL.